01993635
11-05-1999
Judy H. Contreras, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Judy H. Contreras v. United States Postal Service
01993635
November 5, 1999
Judy H. Contreras, )
Appellant, )
)
v. )
) Appeal No. 01993635
William J. Henderson, ) Agency No. 4E-870-0200-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On March 31, 1999 appellant filed an appeal with this Commission from
a final agency decision (FAD) concerning her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq.
EEOC Regulation 29 C.F.R. �1614.402(a) provides that appeals to the
Commission must be filed within thirty calendar days after an appellant
receives notice of the final agency decision. The appeal is deemed
timely if it is delivered in person or postmarked before the expiration
of the applicable filing period. See 29 C.F.R. �1614.604(b).
In the instant case, a Domestic Return Receipt shows that appellant
received the FAD on February 9, 1999. Therefore, appellant's appeal to
the Commission, postmarked March 31, 1999, was filed beyond the thirty
day time limitation. On appeal, appellant contends that her delayed
filing was due to her poor health and the recent death of her nephew.
The Commission has previously held that, in order to justify tolling
the applicable limitation period, a complainant's physical condition
must have rendered her so incapacitated as to make her unable to timely
file an appeal. See Dipko v. USPS, EEOC Request No. 05900043 (March 19,
1990); Johnson v. Department of Health & Human Services, EEOC Request
No. 05900873 (October 5, 1990). Appellant contends that she is under a
doctor's care for tension, anxiety and high blood pressure. However,
even in light of the documentation provided, the Commission does not
find that appellant was so incapacitated as to be unable to file her
appeal within the time limit. We find, therefore, that appellant has
failed to provide sufficient justification to invoke waiver or equitable
tolling of the time limitation.
Accordingly, the appeal is DISMISSED pursuant to 29 C.F.R. �1614.403
(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT
IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
11/05/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations